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Justice Fortas’s Cautionary Tale: Ethical Lapses Required Resignation to Protect the Court

 

In the aftermath of Justice Abe Fortas’s resignation from the Supreme Court on May 14, 1969, a decision provoked by his own  ethical lapses-- political and financial-- that were themselves products of an energy and temperament better suited for legal advocacy than the cloistered environment of a monastic order, President Lyndon Johnson lamented the manner in which he had pressured his old friend to accept a nomination to the High Bench. “I made him take the justiceship,” Johnson said. “In that way, I ruined his life.” 

 

         President Johnson’s hyperbole aside, there is a measure of truth in the role that he played in jeopardizing Justice Fortas’ career on the Court. Fortas had been an adviser to LBJ, dating back to his days as congressman from Texas, through his long stretch as Senate Majority Leader and his tenure as vice-president under John Kennedy. Johnson continued to seek Fortas’ advice and counsel on the Vietnam War and various domestic issues, despite the extra-judicial nature of the advisory role. Fortas’ role as counselor-to-the-president was not a secret. Both men acknowledged the advisory arrangement and Fortas justified it, despite criticism from members of the Court and Congress, by observing that Justices had advised presidents since the days of George Washington. Fortas was correct, historically, but over time concerns about the ethics of judicial advice to the executive brought the practice to a crawl and when it was offered, it was hidden from public view. Johnson and Fortas were flouting norms, and judicial commentators noted the harm inflicted on the Court’s reputation.

 

       Fortas, a brilliant attorney by every measure and the author of notable Supreme Court opinions, saw his life begin to unravel in 1968, just as President Johnson nominated him to succeed Earl Warren as Chief Justice. The principal problem was money. Although it was common in those days for Supreme Court Justices to accept speaking fees and honoraria for serving on boards of charitable foundations, Fortas accepted funds that were eye-popping by standards of the day.  Fortas was unhappy with his salary as a Justice.  His former law partner, Paul Porter, raised $15,000 from friends and former clients to pay Fortas to teach a summer class at American University. The amount of money for a six-week course was thought to be improper, not only among Republicans, but among Democrats as well. The honorarium doomed the nomination, although the promotion was in trouble from the start because opponents attacked Fortas for advising Johnson on foreign and domestic issues. It didn’t help matters that Fortas supported the Vietnam at a time when the issue of the war was tearing apart both the nation and the Democratic Party. Liberal Democrats deserted Fortas for his hawkish views and Republicans were joined by southern Democrats in launching a filibuster that forced withdrawal of the nomination.

 

      Justice Fortas’s problems, however, were just beginning. On May 5, 1969—55 years ago this week-- Life Magazine broke the story that in 1966, Fortas had accepted from the Wolfson Foundation, headed by Lewis Wolfson, a former client, a $20,000 payment to be a consultant to the foundation. This extravagant arrangement provided that Fortas would receive $20,000 annually, an amount that would be paid to his wife, Carolyn Agger, if she survived him. Stunning in its revelations, the article noted that Fortas may have given legal advice to Wolfson who, in turn may have dropped Fortas’s name when useful. Fortas returned the check—the first and only one ever sent to him—after Wolfson was twice indicted.

 

     Justice Fortas’s days on the Court were numbered. The press was unrelenting in its coverage of the story. President Richard Nixon, eager for a vacancy on the Court, pushed for Fortas’s departure. Attorney General John Mitchell encouraged impeachment of Fortas, but Nixon thought that too slow and promoted immediate resignation. There was no evidence that Fortas had given Wolfson any legal advice and no indication that he sought preferential treatment for him. But his reputation was badly damaged, and the American Bar Association declared Fortas’s conduct contrary to the canons of judicial ethics, specifically that a judge’s behavior should be free of any appearance of impropriety.

 

      On May 13, Fortas met with his colleagues on the Supreme Court. Chief Justice Warren focused on Fortas’s lifetime arrangement with the Wolfson Foundation. William Brennan observed that “we were all stunned.” Fortas indicated that he intended to resign from the Court, and no Justice tried to dissuade him. Hugo Black had earlier told Fortas that he should resign in order “to protect the Court.”  Potter Stewart said, “You disqualify yourself from a case if you think it’s right to disqualify yourself, and if you think it’s right to resign, you resign.”

 

       Justice Fortas resigned from the Supreme Court on May 14. He did not want to harm the Court that he loved and explained that his resignation was “an act of conscience.” The law firm that he founded and made famous refused to take him back and he created a new, highly successful firm. He returned to the Court to argue before his former colleagues and died of a heart attack days later, before the Court decided unanimously in his client’s favor.





David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.




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